Court of Appeal judges call time on “academic” case

The Court of Appeal decided against ruling on a case concerning benefits payable to ‘overstaying’ foreign nationals on the ground that it had become academic after the subjects were granted leave to remain.

In The King (on the application of LR by her litigation friend LC) and Coventry City Council ([2025] EWCA Civ 1408), Lord Justice Newey said the case brought by LR by her litigation friend LC concerned a judgment by HHJ Tindal that the family concerned should not be paid a higher amount by Coventry City Council than they were receiving.

Before the appeal could be heard the Home Secretary granted LR and her family leave to remain in the United Kingdom and the council would continue to provide support until revised arrangements were in place.

Newey LJ said: “In the circumstances, this appeal has become academic as between the parties.

“No one in the family is now an ‘overstayer'. The family is therefore no longer subject to the restriction imposed by paragraph 1 of schedule 3 to [the] Nationality, Immigration and Asylum 2002 and no longer needs the variation to the judge's order claimed in the appellant's notice to obtain assistance unfettered by that provision.”

Newey CJ cited guidance as to the position that an appellate Court should take in relation to an issue which has become academic from R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450: "The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."

In relation to the case before the Court of Appeal, Newey said: "The arguments relating to the application of Article 8 raised by Grounds 2 and 3 are too fact-specific for it to be appropriate for us to address them when the appeal has become academic."

Lord Justice Singh and Lord Justice Bean both agreed.

The case had arisen when LR, now aged 16, came to the United Kingdom from Nigeria with her parents and younger brother in 2012.

Her parents had visitor visas but these expired and they became ‘overstayers’.

Coventry provided emergency accommodation after LR’s mother left the family home following domestic abuse but proceeded on the basis that, lacking leave to remain, the family was ineligible for the mainstream welfare benefits system.

Had the appeal gone ahead the court would have been asked to declare that the level of financial assistance provided by Coventry was unlawful by being contrary to s. 17 of the Children’s Act and Article 8 ECHR and that the council's policy on financial assistance under section 17 was unlawful being fixed on provision being no more than that provided under the Asylum Support Regulations 2000.

Mark Smulian